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Lessons of the Blackwater Indictments

What should we think, now that the long investigation into the killings of 17 Iraqis by Blackwater contractors last year has ended with the indictment of five of them and a guilty plea by another?

First, the implications of the indictment and eventual trial verdict will have an impact that goes far beyond Iraq. Contractors are the U.S. government’s American Express card: Uncle Sam dares not leave home without them when it undertakes an overseas operation, whether it is war, humanitarian relief or something in between. Private security contractors around the world will be watching the forthcoming trial with great attention and greater concern.

Second, it appears that at least some of the early press coverage of the events in Baghdad’s Nisoor Square on Sept. 16, 2007, was correct. Blackwater claimed the convoy was attacked by armed insurgents, but Iraqi officials immediately denied that. As Jeffrey Taylor, U.S. attorney for the District of Columbia, where the case will be tried, said: “None of the victims of this shooting was armed. None of them was an insurgent. Many were shot while inside civilian vehicles that were attempting to flee from the convoy. One victim was shot in the chest while standing in the street with his hands up.”

Third, in late 2007 it was reported that American investigators had found that during the shootings at least one Blackwater guard continued to fire on civilians while colleagues were calling for a cease-fire. At least one guard apparently also drew a weapon on a fellow guard who did not stop shooting. But no mention of any of this was made at this week’s Department of Justice/FBI news conference. Did it happen or not?

Fourth, the indictment is unlikely to impact Blackwater as a company. Taylor was careful to say that the indictment does not charge or implicate Blackwater. It charges only the actions of certain employees for their role in the shooting.

Indeed, Blackwater issued a statement that, in part, said, “Blackwater is extremely disappointed and surprised to learn that an individual independent contractor has said he committed wrongdoing related to his activities on Sept. 16, 2007. If true, at the time of the incident and in the months that followed, this individual gave false information to the company to conceal that behavior. Both the conduct itself and misleading Blackwater after the fact would violate the high standards of conduct required of each Blackwater independent contractor.”

This would not be the first time Blackwater has tried to put some distance between itself and its contractors. Earlier this year U.S. House Committee on Oversight and Government Reform Chairman Henry Waxman, D-Calif., released a memorandum stating his committee had obtained evidence indicating Blackwater may have improperly designated its security guards as independent contractors rather than employees in order to avoid paying and withholding federal taxes. That was old news. But, according to the memo, “Blackwater has asserted … that its security guards are independent contractors because the company does not exercise sufficient control over their activities in Iraq and Afghanistan. Blackwater has claimed in official communications that its security guards are ‘in no way directly supervised or controlled by Blackwater’; that they ‘do not report to any of the Blackwater entities regarding their work in the field’; and that they ‘do not report to Blackwater regarding their operations in country.’ Blackwater has also claimed that it ‘plays no role in the development or planning of the contractors’ security missions’ and ‘has little if any knowledge regarding the location or activities of these independent contractors.’ According to Blackwater, its ‘only real involvement is to pay the independent contractors.’”

Fifth, in the end it may very well be that the security guards were entirely at fault, but it must be noted that for a long time some, including those in the private security industry itself, have believed the immunity Blackwater received under its State Department contract encouraged it to emphasize its mission — the protection of its clients — to the exclusion of all other considerations: a sort of “shoot first, ask questions later” attitude.

Such an attitude has been criticized by other parts of the government as well. Secretary of Defense Robert Gates said the mission of many contractors in Iraq — to protect their U.S. government employers, regardless of other consequences — was “at cross-purposes to our larger mission in Iraq. As I see it, right now those missions are in conflict, because in the objective of completing the mission of delivering a principal safely to a destination, just based on everything I’ve read and what our own team has reported, there have been instances where, to put it mildly, the Iraqis have been offended and not treated properly.”

In short, many think Blackwater’s Foggy Bottom client has had a double standard. While publicly the State Department made all the right noises about following the rules on escalation of force and following proper firearms policy, in private it told Blackwater to just do whatever it takes.

For example, on Oct. 24, 2007, Richard Griffin, the assistant secretary of state for the Bureau of Diplomatic Security, resigned. Just a day earlier Secretary Condoleezza Rice, accepting the results of a review, ordered a series of measures to boost government oversight of the private guards from Blackwater and other contractors the department uses to protect its diplomats in Iraq, including more explicit rules on when and how to use deadly force.

That review implicitly rebuked Griffin’s office for insufficient oversight. Yet shortly after his resignation, ABC News reported that two key deputies who worked closely with the security contractors, Kevin Barry and Justine Sincavage, received quiet promotions.

Sixth, if found guilty of the manslaughter and firearms charges, the defendants will face serious punishment — up to 320 years in prison each, if convicted of all the offenses.

More importantly, a guilty verdict would also mean the 2000 Military Extraterritorial Jurisdiction Act, which is the primary law the contractors are being charged under, would be shown to have real teeth and would have a far greater deterrent effect than it does currently. Coupled with new procedures put in place in the aftermath of Nisoor Square as well as the new Iraq-U.S. Status of Forces Agreement, the likelihood of unjustified shooting in Iraq by private contractors during the remainder of the time the United States remains in Iraq should decrease substantially.

Finally, the more important lesson is this: The proper utilization of private military and security contractors depends on having a prepared and educated client. If the U.S. government is not prepared to not only write a detailed contract, but also monitor and audit it, meaning having capable and adequately resourced contracting officers who go out in the field to check up on contractors, then bad things will continue to happen.

And it has long been clear that since before the start of the Iraq War on up until fairly recently, the government has not been up to the job.

The best thing is to prevent bad things from happening in the first place, not to have adequate means to prosecute them after they happen. What that means is fewer lawyers and more auditors. Up to now the government has been missing in action on that count.